President announces transparency review

Family Law|May 13th 2019

It seems that the issue of ‘transparency’, i.e. openness about the workings of the family justice system, aimed at countering the charge that it is a system of secret and unaccountable justice, is just as much a pet subject of the new President of the Family Division Sir Andrew McFarlane as it was for his predecessor Sir James Munby. I suppose we should not be surprised at this, as anyone in charge of any organisation would surely be anxious to defend the reputation of that organisation.

The new President has also inherited his predecessor’s habit of updating the profession, and indeed anyone interested, in the latest developments in the field of family law and his views thereon, in a periodical missive, cunningly entitled ‘View from the President’s Chambers’, the latest edition of which was published on the 7th of May. Sure enough, the President had a few things to say about transparency.

We were told that: “It is important that the issue of Transparency should be kept under active review.” Fighting a sinking feeling, I read on to find that the President intends:

“…to establish a ‘Transparency Review’, during which all available evidence and the full range of views on this important topic can be considered (including evidence of how this issue is addressed in other countries).”

The aim of the review will be: “to consider whether the current degree of openness should be extended, rather than reduced.” It will be conducted over the next nine months, with a view to producing a report and recommendations by this time next year.

I hear that the President says he is open to listening to views either for or against increased transparency, but somehow I can’t envisage him agreeing that openness should be reduced. The undercurrent is strongly in favour of openness being increased, for better or worse.

I am always reminded of King Cnut when I consider the call for greater transparency. It is as if those making the call seek to stem the tide of misinformation surrounding the family justice system generally, and the family courts in particular. But that tide is far too strong: the general public already have access to an ocean of misinformation regarding the family justice system, both in the mainstream media and elsewhere, and a few more ‘correctly’ reported cases will do nothing to stem the flow. If you choose to follow the narrative that the system is biased, secretive, unaccountable, or even corrupt, then you will not be interested in anything that does not fit in to that narrative. And if your business is selling newspapers, you will only be interested in publishing stories that will sell those newspapers, not in whether those stories are accurate.

It should also be remembered, as the President hinted at, that many users of the family courts would actually prefer their private affairs not to be made public. Just the other day, a report of a Court of Protection case was published in which the judge took the unusual step of hearing the case in private, because the man at the centre of the case (which concerned such personal matters as whether he had the capacity to marry) was worried about the possibility of members of the public being present at the hearing. So the argument is not, as some may perhaps perceive it, simply between those within the system who have a vested interest in keeping its workings ‘secret’, and the general populace, whose sole interest lies in opening up the system to public scrutiny.

Another question must be: does it really matter what some people choose to think about the family justice system? In the end, the only thing that matters is that those who know the truth remain in charge of the asylum. Obviously, we cannot have importance decisions made by those who do not understand their consequences. Is it really the case that the calls from the ‘corrupt family courts’ brigade will actually be listened to by those in power, who will feel it necessary to assuage them by making the changes they seek? I’m not so sure it is. Perhaps we should concentrate upon the welfare of those unfortunates who find themselves at the mercy of the family justice system, rather than the misinformed hordes baying for change.

In short, I’m not certain that this modern fixation with transparency is as important as is claimed. I am sure that the resources being devoted to it could be more fruitfully directed elsewhere.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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